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CONDITIONS OF BUSINESS
1)
Definitions
In these
Conditions the “Company” means REYNOLDS & WHATLEY LTD
the “Conditions” means these Conditions of Business the
“Purchaser” means the company firm or individual with
whom the Company contracts the “Goods” means any item of
whatsoever nature which the Purchaser buys or agreed to
buy from the Company or on which the Company is to
perform any services on the Conditions the “Contract”
shall mean the contract between the Company and the
Purchaser entered into pursuant to the Conditions the
expression “liability whatsoever” shall include without
prejudice to the generality of the expression liability
in tort (including negligence) and in contract including
liability for consequential loss (including loss of
profit) or damage of any kind howsoever caused or
arising “services” shall include any repair or
maintenance of any goods.
2)
General
a.
Any quotation or estimate given by the Company is
an invitation to the Purchaser to make an offer only and
no order of the Purchaser placed with the Company in
pursuance of a quotation or estimate or otherwise shall
be binding on the Company unless it is communicated to
the Company within seven days of the date of the
quotation or estimate and whether or not an estimate or
quotation is given no order shall be binding unless the
goods in question are unsold at the date of receipt of
the order.
b.
Any contract for the sale of Goods or performance
of services howsoever made between the Company and the
Purchaser shall incorporate and be subject to the
Conditions which shall apply to the exclusion of any
other provisions contained in any document issued by the
Purchaser. No modification or amendment of the
Conditions shall be binding upon the Company unless
agreed to in writing by someone duly authorised on
behalf of the Company.
c.
Unless otherwise specified all descriptions and
specifications submitted by the Company or given by the
Company or its servants or agents or otherwise contained
in the Company’s catalogues, brochures, price lists and
other published material are approximate only and do not
form part of the Contract being intended merely to
present a general idea of the Goods and advice and
recommendations while given in good faith are without
responsibility and shall not give rise to any liability.
d.
The headings are for convenience only
3)
Price
Unless
otherwise provided in the Contract the price for the
Goods
I.
are ex-works the Company’s premises at Nottingham
or any ex-site from which the Goods may be despatched in
accordance with terms of Contract.
II.
prices of Goods shall be those ruling at the date
of despatch or if despatched pursuant to valid
quotation, the prices stated in the quotation.
III.
shall include the cost of loading onto the
Purchaser’s transport on the premises of the Company
(except where the Company determines that the Purchaser
shall incur an additional charge because of the size and
or weight of the Goods) but exclude the cost of
packaging.
IV.
shall exclude the cost of freight insurance
delivery charges VAT and all applicable taxes and duties
which shall be payable by the Purchaser and determined
at the date of despatch.
4)
Payment
a.
Unless credit arrangements satisfactory to the
Company have been expressly agreed in writing, payment
is to be made by the Purchaser in cash prior to the
Company despatching the Goods to the Purchaser and
without set off or counterclaim. If such credit
arrangements have been agreed and where the Company
performs services the Purchaser shall make full payments
to the Company by the end of the month following the
month within which delivery was made or the services
rendered. If payment is not made in accordance with the
foregoing the Company without prejudice to its other
rights shall be entitled to charge in addition to any
monies due under the Contract interest on the
outstanding amount at the rate of 2% per annum above the
Base Rate of Barclays Bank PLC from time to time in
force until the outstanding amount is paid.
b.
Time of payment is of the essence for all monies
due to the Company.
c.
If Goods are being despatched by instalments (and
unless otherwise stated the Company shall be entitled to
do so) each instalment shall be treated as a separate
Contract to which all the provisions of the Conditions
shall apply and failure to pay by the Purchaser will
entitle the Company at its option and without prejudice
to any other remedy to refuse to make delivery of any
further consignment of Goods or to cancel any
uncompleted order without incurring any liability
whatsoever to the Purchaser.
d.
Where payment is made by cheque it shall not be
deemed to have been made until the cheque has been
honoured by the drawer’s bank.
5)
Title
Until the
Contract price of the Goods shall have been paid or
satisfied in full
a.
The title to and property in the Goods shall
remain vested in the Company (notwithstanding the
despatch of the same and the passing of the risk
therein)
b.
The Company may at any time recover and resell
the Goods (if in the Purchaser’s possession or under its
control) and for this purpose the Company and its
servants and agents shall be entitled to free and
unrestricted entry upon the Purchaser’s premises and or
other locations where the Goods are situated.
c.
The Purchaser shall possess the Goods as bailee
of the Company. If the Company so requires the Purchaser
shall store the Goods for the Company in a proper manner
without charge to the Company and ensure that they are
clearly identified as belonging to the Company. The
Company shall be entitled to examine the Goods in
storage at any time during normal business hours and
upon giving the Purchaser reasonable notice thereof.
d.
The Purchaser is hereby authorised to sell the
Goods in the ordinary course of its business as agent of
and for the account of the Company and to pass good
title in the Goods to its customers being bona fide
purchasers for value without notice of the Company’s
rights but the Purchaser’s right of resale shall
automatically cease upon the occurrence of any of the
events referred to in clause 14 hereof and or if the
Purchaser is in breach of any of the Conditions or other
terms of the Contract.
e.
Upon the resale of the Goods by the Purchaser the
proceeds of sale shall be received and held by the
Purchaser in trust for the Company.
f.
Nothing in this Clause shall
I.
entitle the Purchaser to return the Goods or to
delay payment thereof or
II.
constitute or be deemed to have constituted the
Purchaser as agent of the Company otherwise than for the
purpose of this Clause or
III.
authorise the Purchaser to give or make any
representation or warranty to any third party in
relation to the goods which shall be binding on the
Company unless the Company shall have authorised the
Purchaser so to do in writing.
g.
The rights and remedies conferred upon the
Company by this Clause are in addition to and shall not
in any way prejudice limit or restrict any other rights
or remedies of the Company under the Contract and, in
particular, the right of the Company to maintain and
action for the price of the Goods notwithstanding that
property on the Goods has not passed.
6)
Risk
a.
The Goods shall be at the Purchaser’s risk from
the point of the time of that they are despatched to the
Purchaser whether by way of the Purchaser’s carrier or
an independent carrier or otherwise.
b.
The Goods shall remain at the Purchaser’s risk
notwithstanding any subsequent return or retaking of
possession by the Company for the purpose of performing
any services thereto or otherwise.
7)
Despatch of Goods
a.
Unless otherwise stated in writing any time or
date for the despatch of any Goods or the performance of
any services shall run from the date on which acceptance
of the order is communicated to the Purchaser.
b.
The Company will make all reasonable endeavours
to comply with any date or dates for despatch of the
Goods or for the completion of the services as are
stated in the Contract, but unless the Contract
otherwise expressly provides such date or dates shall
constitute only statements of expectation and shall not
be binding. If the Company having used its reasonable
endeavours fails to despatch the Goods or complete the
services such failure shall not constitute a breach of
the Contract nor shall the Purchaser be entitled to
treat the Contract as thereby repudiated or to rescind
it or claim compensation for such failure or for any
consequential loss or damage resulting therefrom.
c.
If the Company shall be prevented or hindered
from performing the Contract or any part thereof by any
circumstances beyond its reasonable control including
(but without limiting the generality of the foregoing)
strikes, lockouts or other industrial action, inability
to obtain materials or labour, power or machinery
breakdown or failure, adverse weather conditions,
further performance of the Contract shall be cancelled
or suspended at the option of the Company for so long as
the Company is so prevented or hindered and the Company
in respect of such non-performance shall have no
liability whatsoever to the Purchaser
d.
Delivery of the Goods for the purposes of the
Conditions shall be deemed to have taken place upon
their despatch in accordance with Condition 6 a above.
Signature of any delivery note by any agent, employee or
representative of the Purchaser or by any independent
carrier shall be conclusive proof of the despatch of the
Goods.
8)
Acceptance
a.
The Purchaser shall have no right to reject the
Goods on the grounds of variation from the quantity
ordered where such variation is within a margin of 10%
of the quantity of Goods ordered.
b.
Any discrepancy between the quantity or type of
Goods specified on the Company’s delivery note and the
quantity or type of Goods despatched to the Purchaser or
any damage to the Goods must be notified in writing to
the Company (and the carrier where appropriate) within
seven days of despatch otherwise the Purchaser shall be
deemed to have accepted the Goods.
9)
Warranty
Where any goods have been sold as reconditioned Goods
and are shown to the reasonable satisfaction of the
Company to be defective by reason of faulty materials,
workmanship or damage prior to despatch by the Company
the Company shall at its sole option either
I.
Repair such Goods, or
II.
Refund to the Purchaser the Contract price of
such Goods,
PROVIDED that
A.
this Warranty shall only apply if the Purchaser
shall notify the Company in writing within fourteen days
of becoming aware of any defect and only if such
notification shall be received by the Company within
twelve months of the despatch of such Goods and such
dates shall include the date of despatch.
B.
fair wear and tear shall be excluded from this
warranty.
C.
if so required by the Company all defective Goods
shall be returned to the Company’s premises carriage
paid by the Purchaser.
D.
the Warranty shall not apply if payment has not
been made in accordance with the Contract, if the Goods
have not been properly stored or used by the Purchaser,
if any alteration or repair to the Goods has been made
otherwise than by the Company or to Goods sold for use
outside the United Kingdom.
E.
the Company shall have no other liability in
respect of such defects except as mentioned in this
condition.
F.
if the Company determines to make a refund to the
Purchaser the amount to be refunded shall be the
Contract price less an amount calculated by reference to
the time since the Company despatched the Goods to the
Purchaser (i.e. if such period of time is six months,
only 50% of the Contract price will be refunded)
G.
in the case of Goods supplied but not
manufactured by the Company the Company shall use its
best endeavours to pass on to the Purchaser the benefit
of any warranty given by the supplier but shall have no
other liability in respect thereof.
10)
Exclusion of Liability
a.
Save as expressly provided in Condition 9 and
save where the absolute prohibitions against exclusion
and restriction of liability contained in sections 2 1,
6 1 and 6 2 of the Unfair Contract Terms Act 1977 apply
the Purchaser must rely on its own skill and judgment in
relation to the Goods and the Company shall be under no
liability whatsoever to the Purchaser for any defect in,
failure of, or unsuitability for any purpose of the
Goods or any part thereof whether the same be due to any
act, omission, negligence or wilful default of the
Company or its servants or agents or to any other cause
whatsoever, and all conditions representations
warranties (whether in information supplied in relation
to the Goods or otherwise) or other terms whether
express or implied written or oral statutory or
otherwise inconsistent with the provisions of the
Conditions are hereby expressly excluded.
b.
The Purchaser is advised to test the Goods before
using them in order to ascertain their fitness or
suitability for the Purchaser’s purpose.
c.
Without prejudice to the foregoing the Company
shall in no circumstances be liable for any loss damage
costs or expenses which exceed in the aggregate the
Contract price of the Goods.
d.
The price at which the Company agrees to supply
the Goods is based on I. the warranties given and
accepted II. the cost of the manufacture of the Goods
III. the cost of insurance and IV. the exclusions and
restrictions of liability imposed. The Company is
prepared to negotiate a different price if the Purchaser
requires any variation of such warranties or extension
of the liabilities accepted by the Company.
11)
Contracts for Services
If the
Contract is for and includes services to be performed by
the Company then unless the Contract otherwise provides,
the Company shall be obliged to carry out such services
only during normal working hours and if the services are
to be carried out at the premises of the Purchaser or at
his request at the premises of any other person then the
Purchaser undertakes to provide or to procure the
provision free of charge of
I.
proper and safe storage and protection of all
goods, tools, plant and equipment and materials on site.
II.
free and safe access to the site and to the point
at which the work is to be executed.
III.
All facilities and services necessary to enable
such work to be carried out safely and expeditiously and
the Purchaser shall pay to the Company the amount of any
expenses incurred by the Company by reason of any breach
by the Purchaser of any of its undertakings in this sub
clause.
12)
Indemnity
The Purchaser
shall keep the Company indemnified against all costs,
claims, demands, expenses and liabilities of whatsoever
nature which may be made against the Company by any
third party or which the Company may sustain, pay or
incur in relation to any third party claim or demand
arising out of or in connection with the use of the
Goods or any part thereof in any manufacturing, assembly
or building process or from any failure by the Purchaser
to communicate any relevant information about the Goods
to its employees or from the sale, hire or use of the
Goods or any part thereof or any product into which they
or any of them have been incorporated, annexed or
attached and will take such steps as may be necessary to
ensure that the Goods are safe and without risks to
health when properly used.
13)
Waiver
The omission
to exercise or any delay in exercising any of its rights
or remedies under any Contract to which the Conditions
apply shall not constitute a waiver of any such rights
or remedies by the Company.
14)
Insolvency
If any
distress or execution shall be levied upon the Goods or
property of the Purchaser or if the Purchaser (or any
partner thereof should the Purchaser be a partnership)
shall enter into any negotiation for arrangement or
composition with its creditors or commit an act of
bankruptcy or (should the Purchaser be a limited
company) proceedings shall be commenced to wind up the
Purchaser or a Receiver of the Purchaser’s assets or
undertaking or any part thereof shall be appointed the
Company shall be entitled to determine forthwith any
Contract then subsisting without prejudice to any claim
or right the Company might make or exercise.
15)
Law
All Contracts
made between the Company and the Purchaser shall be
governed by and constructed in accordance with English
law and the Purchaser hereby submits to the jurisdiction
of the English Courts.
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